DEPARTMENT OF THE ARMY HEADQUARTERS, DIVISION WEST, FIRST ARMY BUILDING 410, 761ST TANK BATIALION AVENUE FORT HOOD, TX 76544

Transcription

1 DEPARTMENT OF THE ARMY HEADQUARTERS, DIVISION WEST, FIRST ARMY BUILDING 410, 761ST TANK BATIALION AVENUE FORT HOOD, TX AFKA-DVW-SJA 5 October 2015 MEMORANDUM FOR Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC Bottom Line Up Front: I have thoroughly considered all of the evidence presented at the hearing. I find that the government has clearly and undoubtedly met the burden of proof in establishing probable cause that the accused committed the charged offenses. I recommend a Special Court-Martial (not empowered to adjudge a Bad-Conduct Discharge). This recommendation is due primarily to the fact that I heard no evidence demonstrating that anyone was killed or wounded during the search and recovery operations for SGT. Because of the new Article 32 Preliminary Hearing construct established by Congress in the 2014 National Defense Authorization Act, I was unable to conduct an independent and impartial investigation into the issue of casualties and was limited to the evidence presented by the parties. In addition, there are significant mitigating circumstances which led MG Dahl, who served as the primary Investigating Officer into this matter, to testify that in his opinion no jail time was warranted in this case. The government presented no arguments to contradict MG Dahl's conclusion that no jail time was warranted and I see nothing in the evidence I have reviewed that causes me to reach an opposite conclusion. Given the absence of evidence of casualties, I see no reason to disagree with MG Dahl's conclusion and I believe that neither jail time nor, in addition, punitive discharge is warranted in this case. After balancing the aggravating and mitigating facts in this case, I recommend a Special Court-Martial not empowered to adjudge a Bad-Conduct Discharge (formerly called a "Straight Special" court-martial) as the appropriate disposition. 2. Probable Cause: I find that the government has proven that probable cause exists to believe that offenses were committed under the UCMJ, specifically a violation of Article 85, Desertion, and Article 99, Misbehavior Before the Enemy. Further, I find that probable cause exists to believe that the accused committed these offenses listed on the charge sheet. I find that the convening authority has court-martial jurisdiction over the offense and the accused. Finally, I find that the charges are in proper form. 3. Disposition Recommendation: This case arouses strong emotions on all sides and, as a result, I believe that it is necessary to explain my reasoning for recommending a Special Court-Martial with the authority to adjudge a Bad-Conduct Discharge to be

2 AFZA-DWJ-SJA withheld. The aggravation and mitigation evidence are strong on each side, and a few issues warrant detailed discussion. a. Lack of Evidence of Casualties: The fact that no evidence of casualties was introduced at the hearing was the strongest factor in determining my recommendation on disposition. In my opinion, the issue of casualties should be conclusively addressed prior to a final decision on the disposition on SGT 's case, particularly because government counsel opened the door to the potential for casualties during the direct examination of MAJ Silvino. 1 Given the widespread claims in the public media of casualties, 2 I recommend an open accounting of whether there were casualties for two reasons: (1) it impacts the ability of SGT to receive a fair trial; and (2) it promotes the U.S. military's interest in transparency in this matter. The prosecution team never conclusively indicated that there were no casualties as a result of SGT 's desertion; instead, the prosecution hedged their position and indicated that there would be no evidence of casualties offered at the Article 32 hearing. 3 Based on this government assertion, I determined, with government and defense agreement, that I would not consider any evidence that SGT 's desertion caused casualties (Transcript, pgs ). While this position is an appropriate government litigation strategy at the Article 32, such a position does not serve the interests of the military writ large, and the command should address this matter conclusively before moving forward with this case. Had I conducted this Article 32 under the Pretrial Investigation rules that were in place prior to the 2014 National Defense Authorization Act, I would have 1 During his testimony, upon questioning by the government counsel, MAJ Silvino related the account of SGT Rice, who had been hit by three consecutive IED's and had to be pulled out of operations. (Transcript, pg. 159). In addition, MAJ Silvino indicated that 80% of his vehicles had to be swapped out either due to IED strikes or for maintenance breakdowns and that all of his minerollers were destroyed in search and recovery operations (Transcript, pgs ). Similarly, COL Baker indicated that during search and recovery operations there were multiple "troops in contact" per day and daily IED strikes (Transcript, pg. 210). He also testified that a helicopter was shot during operations (Transcript, pg. 212). COL Baker testified that the operations were "as high risk as any operations I ever - I have ever seen or been a part of in the Army." (Transcript, pg. 213). Upon questioning from myself, MAJ Silvino indicated that SGT Rice had a likely concussion from the IED strikes and that a Purple Heart had been submitted for SGT Rice (Transcript, pg. 189). MAJ Silvino also indicated that there was a high percentage of personnel in his company who received Purple Hearts (Transcript, pg. 189). 2 This fact was mentioned by civilian defense counsel in his cross-examination of CPT Billings (Transcript, pg. 190) and his closing argument (Transcript, pg. 376). In addition, I was aware generally of claims of casualties that were made in the public media. None of these (unsubstantiated) claims of casualties by the media affected my decision in this case and I strictly based my findings and recommendations on the evidence that was presented to me at the Preliminary Hearing. 3 MG Dahl indicated that he did not see any evidence of casualties during his investigation, but noted that this was outside the scope of his investigation. MG Dahl had requested authority to expand his investigation into the issue of casulaties, but was denied by the investigation appointing authority. The rationale for the denial was that this subject was being investigated by Central Command (Transcript, pg ). No evidence of this Central Command investigation was presented to me during the hearing. If in fact there is evidence of casualties in this or any other investigation, I recommend that the defense be provided an opportunity of notice and opportunity to comment before the convening authority makes a disposition decision. 2

3 AFZA-DVW-SJA thoroughly examined this area in order to reach a definitive finding on the issues of casualties. 4 In my opinion, an open and public accounting of casualties should be conducted prior to a final decision on disposition. b. SGT 's mental state: There is almost unanimous agreement that SGT left OP Mest for with good, albeit misguided, motives. His plan was to hike to FOB Sharana and create a DUSTWUN situation in order to seek an audience with a General Officer so that he could alert the General to the poor leadership in his battalion which, in SGT 's opinion, was putting his platoon in danger of being ordered on a suicide mission. If SGT 's observations and beliefs had been reasonable and correct, then he might have been able to successfully establish a duress or necessity defense. However, there is unanimous agreement that SGT was incorrect in his observations and his beliefs were objectively unreasonable and incorrect-a conclusion with which I fully concur. The fact that SGT went so far off base in his reasoning raises the question of his mental health. In my opinion, SGT 's mental state substantially contributed to his unreasonable decision to desert. The R.C.M. 706 sanity board report confirms this assessment noting that SGT indeed had a severe mental disease or defect (specifically Schizotypal Personality Disorder) at the time of the alleged offenses (Defense Exhibit C). 5 While I heard no evidence as to the nature of this disorder and whether it might have contributed to his decision to depart, I did see abundant lay opinion evidence that attributed SGT 's actions to his extremely idealistic, highly introverted personality combined with an active imagination and vivid thought life. These three facts (the diagnosis of a severe mental disease or defect, the description of SGT 's unusual personality and the unreasonable decision which he ultimately made) taken together, support a conclusion that SGT 's abnormal mental state, whatever that was, contributed to his decision to commit the offense. Further, the fact that SGT had mental health problems was known within the U.S. Military and events may have transpired differently had concerns about SGT 's mental health been properly followed up. The U.S. Coast Guard separated the accused for, in part, mental health issues. Indeed, his treating psychiatrist in the Coast Guard wrote that SGT would need stress management counseling and would need to be cleared by a psychiatrist before re-enlisting (Defense Ex. B, pg. 32). It does not appear that SGT ever was cleared by a psychiatrist before enlisting in the Army. Further, during the deployment, one of SGT Berdahl's Sergeants raised some concerns 4 I do not intend to be critical of this change. There were many valid reasons for Congress to decide to change the Article 32 from a Pretrial Investigation into a Preliminary Hearing. However, as in much of life, there are tradeoffs. The inability for the Article 32 investigating officer to get to the bottom of a contentious issue such as this is one of those tradeoffs. 5 I do note that the board also found that SGT was able to appreciate the nature and quality and wrongfulness of his conduct. However, as is discussed below, I believe that this mental condition contributed to SGT 's unreasonable decision to desert. As a result, there is no legal defense of insanity but SGT 's mental condition was certainly mitigating. 3

4 AFZA-DVW-SJA regarding SGT 's mental well-being directly to the First Sergeant, concerns which the First Sergeant summarily dismissed with an expletive-laced tirade (Transcript, pg. 238). Had either of these pieces of information been properly followed up, events may have transpired differently. While I did not hear expert testimony from mental health experts, I believe that it is safe to conclude that Sergeant 's mental health condition contributed a situation where SGT concluded that the dramatic act of desertion from a combat outpost was necessary. These facts as a whole, combined with the conditions SGT suffered in captivity, further support the conclusion that confinement and punitive discharge are not warranted. c. Conditions of Confinement: Compelling evidence was introduced as to the torture and atrocities suffered by SGT during his nearly five years in captivity. SGT was confined alone for nearly five years in conditions comparable to those suffered by U.S. servicemembers in North Vietnam (Transcript, pg. 343). The trial counsel argued that these conditions were not relevant because they were the direct result of the accused's own crimes. I agree with the trial counsel, to a point. Had the accused deserted for selfish reasons or because he did not wish to fight, then I would agree. But in this situation, the accused deserted with well-intentioned, albeit misguided, motives. Sergeant specifically understood the personal risk he was taking when he deserted, and he believed that his self-sacrifice was necessary to save his platoon (a belief that is in fact consistent with the Army Values). Because SGT deserted for good motives, I believe that the disposition authority should not summarily dismiss the atrocities suffered by SGT and that the conditions of captivity should be properly considered in determining a disposition to this case. d. Other aggravating and mitigating evidence. Both sides presented compelling aggravation and mitigation evidence, all of which was considered in reaching my decision. The aspects mentioned above, while important, are not the only considerations I made in reaching my decision. In addition, I would also note that the government presentation of the effect of the accused's desertion on his unit and Task Force Yukon was significant in my recommendation as to disposition. e. Conclusion: Considering all of these factors together, I believe that a Special Court-Martial is appropriate. Trial by court-martial at the Special Court-Martial level would provide a level of punishment which appropriately balances the aggravating and mitigating factors in this case. The accused admitted in his statement that he knew his conduct was punishable (Transcript, pg. 306) and his unit suffered greatly as a result of his offenses-for these reasons, some punishment is necessary. However, neither jail time nor a punitive discharge are appropriate, in my opinion, given the lack of evidence of casualties, the extensive abuse he suffered while in captivity, and the long-term medical care that he will be required to receive in the future. As a result, I recommend trial by Special Court-Martial in this case. 4

5 AFZA-DWv-SJA 4. Defense Arguments. Despite the fact that I have determined that probable cause exists to believe that the offenses charged were committed under the UCMJ and that the accused committed the charged offenses, I do want to comment on several possible defenses that were raised during the hearing: a. Lack of Specific Intent (Charge I): Defense argues that there is no evidence that the accused specifically intended to avoid hazardous duty or shirk important service. I disagree, as the record abundantly establishes this point, particularly in the detailed recitation of events in the accused's sworn statement. The accused knew he would be called upon to perform guard duties and take part in a tactical convoy back to FOB Sharana, and he knew that he would miss these duties by leaving OP Mest. In addition, an objective review of these activities, performed in a foreign combat zone, are, at a minimum, "important service" and also qualify as "hazardous duty." 6 b. Proof of "Before the Enemy" (Charge II): Defense argued that there was no basis for claiming that the accused was "before the enemy," as alleged in Charge II. I disagree. The record abundantly establishes that SGT was before the enemy. He was captured by enemy forces within hours of leaving the base. In addition, there was extensive testimony that Observation Post Mest was situated in a location to provide direct overwatch of key enemy infiltration lines. The Manual for Courts-Martial (part IV, para. 23(c)(1)(c)) provides an example of a unit which would not be "before the enemy": "an organization some distance from the front or immediate area of combat which is not a part of a tactical operation then going on or in immediate prospect is not 'before or in the presence of the enemy."' In this particular case, none of these negative criteria were met: (1) OP Mest was properly considered part of the "front," or, at a minimum, the immediate area of combat; and (2) the accused was part of a tactical operation then going on and in immediate prospect-the Soldiers at OP Mest engaged in regular guard duties and were fully armed and ready for combat at all times as part of their effort to interdict enemy lines of infiltration. c. "Such unit" (Charge II): Defense counsel argued that this phrase relates back to the "unit" described in Article 99(2), which includes the qualifier "which it is his duty to defend" (and which, defense apparently argues, is a requirement for Article 99(3) that has not been alleged or proven). I disagree. The phrase "it is his duty to defend" relates back to the gravamen of the offense of Article 99(2), which is "shamefully abandon[ing], surrender[ing] or deliver[ing] up any command, unit, place or military 6 In closing arguments, defense counsel cited me to U.S. v. Gonzalez, 44 M.J. 469 (1995) and a Naval Law Review article ("Comment, Shirking Important Service that Isn't: Desertion under United States v. Gonzalez. " 44 Naval L. Rev. 287 (1997)) to argue that the elements of the offense had not been met. I reviewed both authorities and disagree. U.S. v. Gonzalez spells out an objective and subjective test: subjectively, an accused must have the specific intent to avoid the important service or hazardous duty; objectively, the duty must actually be important or hazardous. 44 M.J. at 472. I find that both aspects of this test have been clearly met. 5

6 AFZA-DWJ-SJA property." There is no requirement specified in the Manual for Courts-Martial or the UCMJ that the government allege or prove that SGT had a duty to defend Task Force Yukon and Observation Post Mest under Article 99(3). d. Multiplicity: During Defense arguments, counsel made the claim that the two charges are multiplicious. I disagree-each offense has a distinct element not required by the other. e. Constructive Condonation of Desertion (RCM 907(b)(2)(D)(iii)): This is an obscure defense for which no case law can be found. I will note that Defense Counsel's submissions to the FORSCOM Commanding General on March 2, 2015 (Defense Exhibit A) suggest that a legitimate reason for delay exists: "Health issues preclude a disposition decision at this time. As indicated in the enclosed correspondence, Brooke Army Medical Center staff estimates that SGT 's clinical response will be maximized no earlier than June 15, No disposition decision should be made until then. " This argument undercuts the concept that a GCMCA constructively condoned the alleged desertion and there were legitimate reasons for delaying a court-martial charge.7 In addition, I was not presented evidence on whether the accused was flagged during any of the time period in question-i would consider this to be an important piece of information in deciding whether this defense was applicable. f. Termination of the AWOUlmpossibility to Return (Charge I). Defense argues that, at most, SGT 's misconduct constitutes an AWOL for less than 24 hours because he was kidnapped by enemy forces and it was impossible for him to return (as he had intended on doing). While I do concur that SGT had only intended on being absent for hours, the offense of desertion was complete as soon as SGT took actual and concrete steps to effect his plan with the requisite intent (see MCM, part IV, para.9(c)(3)). Further, the impossibility of return or the intervening criminal act does not change the accused's status. The Manual for Courts-Martial specifically addresses this situation in the discussion section of Article 86, Absence without Leave. The Manual states: 'The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense." (MCM, Part IV, para. 1 O(c)(6)). g. Specific intent negated by mental disease or defense (Charge I). While the R.C.M. 706 Sanity Board found that the accused had a several mental disease or defect (specifically Schizotypal Personality Disorder), the board found that SGT was able to appreciate the nature and quality and wrongfulness of his conduct. That said, 1 Granted, in th is same letter, the defense argues that the defense of constructive condonation exists. 6

7 AFZA-DVW-SJA Bergdah/ this diagnosis also has the possibility of negating the specific intent needed to establish the desertion in Charge I. No evidence was presented to me regarding this issue, but I will note that the accused's sworn statement appears to demonstrate an individual who was very considered and deliberate in his actions and who also recognized the that it was likely that he would be punished for his conduct. As a result, I do not believe that this diagnosis will negate the specific intent element of Charge I. h. Validity of Misbehavior Before the Enemy Charge. Defense counsel attacked the validity of this charge in closing argument (Transcript, pg. 370), arguing that the use of this charge is an abuse of the code. I disagree. His behavior specifically affected U.S. military operations against the enemy (e.g., the Taliban) and impeded the ability of Task Force Yukon to perform its primary mission, which was counterinsurgency operations. In addition, SGT 's statement indicates that he specifically intended to cause search and recovery operations through his DUSTWUN. Similarly, SGT did not just go AWOL, but he left his military post in an area which was rife with insurgents-causing the United States Government to expend massive resources to recover him. His actions specifically affected military operations against the Taliban and I find that it is not an abuse of the code to charge him with this offense. In addition, I find there to be probable cause that the elements of the offense are met in this case. 5. Other Defense Legal Objections: There were a number of defense objections raised throughout the proceedings. A catalog of defense objections prior to the hearing which I denied are listed in Enclosure 2. Several of these objections merit brief discussion: a. Denial of investigative assistance: The defense counsel requested that I direct the provision of investigative assistance for the defense. In a memo dated 16 June 2015, I denied that request (PHO Exhibit XXXII). I found that the defense had made a "strong showing" of the need for investigative assistance, but that I did not have the authority as Preliminary Hearing Officer to order such relief. b. Failure to grant defense Top Secret (SCI) clearance: While defense counsel strongly objected to this action, I have no evidence before me to make any comment on the decision to not take action on the defense request for a Top Secret (SCI) security clearance. c. Admissibility of SGT 's statement: In closing arguments, defense indicated that there was a potential challenge to the admissibility of the accused's statement given to MG Dahl (Prosecution Exhibit 1) because SGT had given prior unwarned statements to the intelligence and SERE debriefers and no cleansing warning was issued prior to the questioning by MG Dahl. In addition, defense specifically indicated that my consideration of Prosecution Exhibit 1 did not waive their ability to object to this document's admissibility at trial-a position with which both the government counsel and I concur based on Military Rule of Evidence 304(f)(1 ). Mr. 7

8 AFZA-DVW-SJA Russell clearly testified that the SERE debriefings took place without warning SGT of his Article 31(b) rights, but Mr. Russell also testified that two attorneys oversaw the questioning process at all times to ensure that SGT 's rights weren't violated. However, I have no evidence as to the circumstances of the intelligence debriefings and no evidence of the specific questions that were asked the accused in either debriefing. I will also note that civilian defense counsel was present during MG Dahl's interview and, in fact, MG Dahl postponed the interview to accommodate the civilian defense counsel, which would mitigate in favor of the voluntariness of the statement. However, this issue will require a fact-specific inquiry which was outside the scope of this Article 32 and, as such, I do not have sufficient facts to analyze this issue. d. De facto pretrial restriction: No evidence was presented to me for consideration on this point, but defense raised the issue in closing argument regarding whether the requirement for escort whenever leaving base amounted to de facto pretrial restriction. This issue should be decided by a military judge if the case goes to trial. 5. Explanation of Delay. I was appointed as Preliminary Hearing Officer on 20 May 2015 with a directive to conduct the hearing on 8 July Previously, LTC Marc Washburn was appointed as Preliminary Hearing Officer on 25 March 2015, with a directive to conduct the hearing on 22 April In a subsequent memorandum to L TC Washburn, you approved a delay request until 8 July On 27 May 2015, the defense submitted a request for further delay, which you granted by memorandum dated 29 May After the hearing was conducted on September, I requested further delay from 25 September 2015 until 5 October 2015 in order to allow time for the court-reporter to prepare a verbatim transcript before submitting my report, which was approved. 6. Witnesses who testified. The following witnesses testified under oath: Name Grade Organization or Address Billings, John CPT HHC, 41 st Engineer Battalion Silvino, Silvino MAJ HQ, U.S. Army Pacific Baker, Clint COL HQ, U.S. Army Alaska Dahl, Kenneth MG HQ, I Corps Russell, Terrence D. CIV Joint Personnel Recovery Academy Leatherman, Greg CIV Lake Kiowa, Texas Aberle, Curtis CIV Brooke Army Medical Center 7. Evidence that was considered. The following statements, documents, or matters were considered; the accused was permitted to examine each. 8

9 AFZA-0\/W-SJA Description of Item Location of Original Accused Permitted to Examine? PE 1-SGT Sworn Government Counsel Yes Statement and DA 3881, dtd 6 August 2014 (373 pages) PE 2-SGT Attachment Government Counsel Yes Orders to FORSCOM, dtd 9 Jan 2015 (1 page) PE 3-SGT Deployment Government Counsel Yes Orders, dtd 1 May 2009 (2 pages) PE 4-SGT DA Form Government Counsel Yes 4187, Captured to Present for Duty, dtd 30 March 2015 (2 pages) DE A-Mr. Fidell's Letter to GEN Defense Counsel Yes Milley (28 pages) DE B-MG Dahl AR 15-6 Defense Counsel Yes Investigation Report (59 pages) DEC-Short Form R.C.M. 706 Defense Counsel Yes Board Findings, dtd 27 July 2015 DE D-DA Form 3349, Physical Defense Counsel Yes Profile, dtd 25 June 2015 In separate correspondence prior to the hearing, the defense counsel requested my consideration of additional evidence at the hearing. This included: (1) a list of 8 classified documents (one was subsequently declassified) (PHO Exhibit XLVI); (2) a list of 34 classified documents (PHO Exhibits IV and XXXVII); (3) a letter from the FBI designating SGT as the victim of a crime (PHO Exhibits LXII); and (4) a casualty log (PHO Exhibit LXIII). In an informal conference during the hearing, the defense indicated that the only items it wished for me to consider as evidence were Defense Exhibits A-D listed above, and this list was confirmed on the record (Transcript, pgs. 347, 382). 8. Counsel for Accused: In addition to the named counsel in blocks 7 and 8 of the DD Form 457, the accused was also represented by CPT Alfredo Foster, U.S. Army Trial Defense Services. 9. Chronology: A chronology of my activities regarding this case is enclosed (Enclosure 1 ). 9

10 AFZA-DWv-SJA 10. Point of contact for this memorandum is the undersigned. Enclosures 1. Chronology 2. Summary of Defense Objections ~ti MARK A. VISGER LTC, JA Preliminary Hearing Officer! 10

11 Enclosure 1 to Article 32 Preliminary Hearing Officer Report in the case of United States v.. Preliminary Hearing Officer Chronology 21 May 2015: Received appointment orders. ed parties regarding timing of submission of defense witness list. 22 May 2015: Received defense witness and evidence request. 26 May 2015: Received government documents. 27 May 2015: Received notice that defense requested delay and requested an RCM 706 board. Received additional defense request for production of documents. 29 May 2015: Convening Authority Approved Delay until 15 September Jun 2015: Held conference call with parties. Set follow up conference call for 12 June June 2015: Prepared MFR detailing the minutes of the conference call. 5 June 2015: Sent out preliminary questions for arguments on the issues at 12 Jun conference call. 11 June 2015: Sent out in advance of conference call on 12 June June 2015: Held conference call with parties, heard arguments on the current legal issues then outstanding 16 June 2015: Issued ruling on the defense request for investigative assistance 17 June 2015: Issued ruling on the defense objection to the jurisdiction of the convening authority 18 June 2015: Issued ruling on the defense request for the production of witnesses and evidence 22 June 2015: Signed Article 32 notification memo for SGT and caused to be served on him. 29 June 2015: Received government memorandum objecting to PHO ruling on production of classified evidence. 30 June 2015: Received defense response to 29 June government objection. 1 July 2015: Issued ruling on 29 June government objection and specifying procedures to be utilized 1 July 2015: Received defense objection to the government's denial of witness request for Mr. Sean Langan 1-15 July 2015: On Leave 20 July 2015: Conference call with the parties regarding logistical issues 1

12 Enclosure 1 to Article 32 Preliminary Hearing Officer Report in the case of United States v.. Preliminary Hearing Officer Chronology 21 July 2015: Issued decision memorandum regarding defense request for Mr. Sean Langan 29 July 2015: Received defense request for additional witness/evidence. 3 August 2015: Received government response to defense request for additional witness 14 August 2015: Held teleconference with the parties 17 August 2015: Issued memorandum documenting 14 August teleconference 25 August 2015: Issued which ruled on government efforts to obtain behavioral health policy letters and which addressed the DA G2 return of Mr. Fidell's security clearance request without action 28 August 2015: Sent to the parties regarding the status of disclosure of classified documents to the defense 31 August 2015: Sent to the parties regarding the legal issues to be resolved at 2 September conference call 2 September 2015: Reviewed classified memo from the government regarding classified documents turned over to the defense 2 September 2015 : Held conference call with the parties 2-3 September 2015: Received request for delay in the proceedings from the defense 4 September 2015: Issued memorandum detailing resolution of the current legal issues 4 September 2015: Received from defense objecting to limitations on access to witnesses 8 September 2015: Received memo from government requesting closure of portions of Article 32 hearing 8 September 2015: Sent to parties regarding 4 September defense objection regarding access to the witnesses 11 September 2015: Conference call to discuss government request for closure of the hearing 16 September 2015: Travel to Joint Base San Antonio September 2015: Held Article 32 hearing 21 September 2015: Requested delay from Convening Authority in submitting final report 24 September 2015: Received approval of delay to submit final report until 5 October September 2015: Received transcript of the hearing from court reporter 2

13 Enclosure 1 to Article 32 Preliminary Hearing Officer Report in the case of United States v.. Preliminary Hearing Officer Chronology 30 September 2015: Completed reading of transcript of hearing, completed errata sheet and returned to court-reporter. Sent draft report to legal advisor for legal review 5 October 2015: Signed final report and returned to convening authority 3

14 Enclosure 2 to Article 32 Preliminary Hearing Officer Report in the case of United States v.. Summary of defense objections denied by the Preliminary Hearing Officer Defense Request Forum Requested Status/Notes Investigative Assistance PHO Exhibit XVII Denied, PHO Exhibit XXXII Discovery re COL Baker/GEN Milley PHO Exhibit XVII Denied, PHO Exhibit XXXII relationship Discovery re Assignment of PHO Exhibit XVII Denied, PHO Exhibit XXXII Prosecution Team Discovery re JA communication with PHO Exhibit XVII Denied, PHO Exhibit XXXII GEN Milley and LTC Burke Discovery re s to/from GEN PHO Exhibit XVII Denied, PHO Exhibit XXXII Milley re case Discovery re GOMOR that GEN Milley PHO Exhibit XVII Denied, PHO Exhibit XXXII, received Discovery re evidence of UCI PHO Exhibit XVII Denied, PHO Exhibit XXXII Discovery re summary of direct costs PHO Exhibit XVII Denied, PHO Exhibit XXXII incurred by government in 's case Discovery re 's enlistment PHO Exhibit XVII PHO Exhibit XXXII. Government is waiver file currently unable to locate. I find that it is relevant and should be produced if located. Request for contact information for PHO Exhibit XVII PHO Exhibit XXXII. I directed all MAJ Silvino and COL Baker official information in government's possession be released. Discovery re all operational reporting PHO Exhibit XVII Denied, PHO Exhibit XXXII regarding DUSTWUN cases Discovery re all ROE in effect in 2009 PHO Exhibit XVII Denied, PHO Exhibit XXXII Discovery re behavioral health policy PHO Exhibit XVII Granted, PHO Exhibit XXXII. letters Subsequent government representations indicated that they could not be located after substantial efforts made to locate: Without defense objection, I relieved the government of its responsibility, finding that the government had engaged in reasonable efforts to locate the documents. PHO Exh ibit LXVI. Discovery re TF Yukon implementation PHO Exhibit XVII Denied, PHO Exhibit XXXII of AR 15-6 recommendations Discovery re legal reviews PHO Exhibit XVII Denied, PHO Exhibit XXXII accompanying MG Dahl's 15-6 investigation Discovery of interim drafts of MG PHO Exhibit XVII Denied, PHO Exhibit XXXII Dahl's 15-6 report Discovery regard ing 15 Prudential PHO Exhibit XVII Denied, PHO Exhibit XXXII Search Requests to USG agencies 1

15 Enclosure 2 to Article 32 Preliminary Hearing Officer Report in the case of United States v.. Summary of defense objections denied by the Preliminary Hearing Officer Request for Bill of Particulars PHO Exhibit XVII Denied, PHO Exhibit XXXII. In later correspondence government counsel proffered that it would only introduce evidence tending to show that the accused wrongfully caused search and recovery operations through 31 August Defense requested that this proffer be considered an answer to the request, but that I denied their request. Defense Request for Production of PHO Exhibit XIX Defense request granted, PHO Operational/Intelligence Reporting Exhibit XXXII. After government Regarding SGT ' s produced 34 responsive documents whereabouts totaling 108 pages, I found, over defense objection, that the government had engaged in reasonable efforts to locate these documents and that the production of any further evidence on this point would be cumulative. PHO Exhibit LXVI. Defense Objection to the Jurisdiction PHO Exhibit XXVI Overruled, PHO Exhibit XXXI. of the Convening Authority Defense Request for Delay, citing 15 PHO Exhibit LXI; PHO Exhibit PHO Exhibit LXVI. I declined reasons why delay should be granted LXIV. recommending a delay to the convening authority. Defense Objection to the grant of Top PHO Exhibit LIV PHO Exhibit LXVI. I declined to act Secret-SCI security clearance to Mr. on the matter as this was between Fidell the convening authority and counsel. I also declined to order the production of documents related to the decision not to act on the defense request for security clearance Defense Request for the Production of PHO Exhibit XXXV PHO Exhibit XLII. Denied based on Mr. Sean Langan to testify lack of relevance. Defense Request for the Contact PHO Exhibit XXXV PHO Exhibit XXXV. Request was information regarding Mr. Cody Full denied. 2

16 PRELIMINARY HEARING OFFICER'S REPORT (Of Charges Under Article 32, UCMJ and R. C.M. 405, Manual for Courts-Martial) 1 a. FROM: (Name of Preliminary Hearing Officer - b. GRADE c. ORGANIZATION d. DATE OF REPORT Last. First, Ml) Visger, Mark A. LTC HQ, First Anny Division West 5 Oct a. TO: (Name of Officer who directed the b. TITLE c. ORGANIZATION Preliminary Hearing - Last, First, Ml) Commander HQ, Special Troops Battalion, U.S. Army Forces Command Burke, Peter Q. 3a. NAME OF ACCUSED (Last, First, Ml) b. GRADE c. ORGANIZATION d. DATE OF CHARGES, Robert B. SGT HHC, U.S. Anny Forces Command 25Mar2015 (Check appropriate answer) YES NO 4. IN ACCORDANCE WITH ARTICLE 32, UCMJ, AND R.C.M. 405, MANUAL FOR COURTS-MARTIAL, I CONDUCTED A PRELIMINARY HEARING CONCERNING THE CHARGES APPENDED HERETO (Exhibit 1) 5. THE ACCUSED WAS REPRESENTED BY COUNSEL (If not, see 9 below) X 6. COUNSEL WHO REPRESENTED THE ACCUSED WAS QUALIFIED UNDER R.C.M. 405(d) (2), 502(d) X 7a. NAME OF DEFENSE COUNSEL (Last, First, Ml) b. GRADE Sa. NAME OF ASSISTANT DEFENSE COUNSEL (ff any) b. GRADE Fidell, Eugene Rosenblatt, Franklin LTC c. ORGANIZATION (If appropriate) c. ORGANIZATION (If appropriate) U.S. Army Trial Defense Services X d. ADDRESS (If appropriate) d. ADDRESS (If appropriate) 127 Wall Street N ew Haven, CT TO BE SIGNED BY ACCUSED IF ACCUSED WAIVES COUNSEL. (If accused does not sign, preliminary hearing officer will explain in detail in item 23.) a. PLACE b. DATE I HAVE BEEN INFORMED OF MY RIGHT TO BE REPRESENTED AT THIS PRELIMINARY HEARING BY COUNSEL, INCLUDING MY RIGHT TO CIVILIAN OR MILITARY COUNSEL OF MY CHOICE IF REASONABLY AVAILABLE. I WAIVE MY RIGHT TO COUNSEL AT THIS PRELIMINARY HEARING. c. SIGNATURE OF ACCUSED 10. AT THE BEGINNING OF THE PRELIMINARY HEARING, I INFORMED THE ACCUSED OF : (Check appropriate answer) YES NO a. THE NATURE OF THE CHARGE(S) X b. THE IDENTITY OF THE ACCUSER X C. THE RIGHT AGAINST SELF-INCRIMINATION UNDER ARTICLE 31 X d. THE PURPOSE OF THE PRELIMINARY HEARING X e. THE RIGHT TO BE PRESENT THROUGHOUT THE TAKING OF EVIDENCE X f. THE WITNESSES AND OTHER EVIDENCE KNOWN TO ME WHICH I EXPECTED THE GOVERNMENT TO PRESENT X g. THE RIGHT TO CROSS-EXAMINE WITNESSES X h. THE RIGHT TO PRESENT MATTERS IN DEFENSE AND MITIGATION X i. THE RIGHT TO MAKE A SWORN OR UNSWORN STATEMENT, ORALLY OR IN WRITING X 11 a. THE ACCUSED AND ACCUSED'S COUNSEL WERE PRESENT THROUGHOUT THE PRESENTATION OF EVIDENCE (If the accused or counsel were absent during any part of the presentation of evidence, complete b below.) b. STATE THE CIRCUMSTANCES AND DESCRIBE THE PROCEEDINGS CONDUCTED IN THE ABSENCE OF ACCUSED OR COUNSEL X NOTE: If additional space is required for any item, enter the additional material in Item 23 or on a separate sheet. Identify such material with the proper numerical and, if appropriate, lettered heading. (Example: "7c".) Securely attach any additional sheets to the form and add a note in the appropriate item of the form: "See additional sheet." DD FORM 457, DEC 2014 PREVIOUS EDITION IS OBSOLETE. Adobe Professional X

17 12a. THE FOLLOWING WITNESSES TESTIFIED UNDER OATH: (Check appropriate answer) See Attached Memo NAME (Last, First, Ml) GRADE (If any) ORGANIZATION/ADDRESS (Whichever is appropriate) YES NO, r-.l~;.... I.. ; :~-' ' t1'' \ \. ;. ~i fi.~ 7;,,.\ I ~'..,, ' \. b. THE SUBSTANCE OF THE TESTIMONY OF THESE WITNESSES IS ATTACHED X c. AT THE HEARING, EVIDENCE WAS OFFERED UNDER MILITARY RULES OF EVIDENCE (Check appropriate box(es)) d. PORTIONS OF THE HEARING WERE CLOSED X e. SEALED MATERIALS ARE INCLUDED IN THIS REPORT X 13a. THE FOLLOWING STATEMENTS, DOCUMENTS, OR MATTERS WERE CONSIDERED; THE ACCUSED WAS PERMITTED TO '': it~} ;::, { EXAMINE EACH. / DESCRIPTION OF ITEM LOCATION OF ORIGINAL (If not attached) ''J'\' ' See Attached Memo X b. EACH ITEM CONSIDERED, OR A COPY OR RECITAL OF THE SUBSTANCE OR NATURE THEREOF, IS ATTACHED X 14. THERE ARE GROUNDS TO BELIEVE THAT THE ACCUSED WAS NOT MENTALLY RESPONSIBLE FOR THE OFFENSE(S) OR NOT COMPETENT TO PARTICIPATE IN THE DEFENSE (See R.C.M. 909, 916(k)) 15. ALL ESSENTIAL WITNESSES WILL BE AVAILABLE IN THE EVENT OF TRIAL X 16. AN EXPLANATION OF ANY DELAYS IN THE HEARING IS ATTACHED HERETO X 17. THE CHARGE(S) AND SPECIFICATION(S) ARE IN PROPER FORM X 18. THERE IS PROBABLE CAUSE TO BELIEVE AN OFFENSE HAS BEEN COMMITTED AND THAT THE ACCUSED COMMITTED THE OFFENSE X 19. THE UNITED STATES HAS JURISDICTION OVER THE OFFENSE(S) AND THE ACCUSED X 20. ADDITIONAL UNCHARGED MISCONDUCT WAS CONSIDERED AND A RECOMMENDATION FOR DISPOSITION IS ATTACHED HERETO 21. I AM NOT AWARE OF ANY GROUNDS THAT WOULD DISQUALIFY ME FROM ACTING AS A PRELIMINARY HEARING OFFICER 22. I RECOMMEND: a. TRIAL BY: OsuMMARY IX] SPECIAL 0 GENERAL COURT-MARTIAL b. D OTHER (Specify) 23. REMARKS (Include, as necessary, explanation for any answers above.) Recommend trial by Special Court-Martial (not empowered to adjudge a Bad-Conduct Discharge). X X See attached memorandum for further explanation. 24a. TYPED NAME OF PRELIMINARY HEARING OFFICER b. GRADE c. ORGANIZATION Mark A. Visger LTC HQ, First Army Division West ~?1- /~ d. SIGNATURE OF PRELIMINARY HEARING OFFICER DD FORM 457 (BACK), DEC I e. DATE!;; De."'" a.o,s